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Pay & Leave Claim Decisions

Office of the General Counsel

Date: May 25, 2000
Matter of: [xxx]
File Number: 99-03600

OPM Contact: xxx

The claimant, a [xxx] employed by the [agency], seeks
compensation for 1,636 hours spent traveling to various meat and
poultry plants during the period from [xxx] to [xxx]. For the
reasons discussed herein, the claim is granted in-part and denied
in-part.

(2) time spent in a travel status away from the official duty
station of an employee is not hours of employment unless -

(A) the time spent is within the days and hours of the regularly
scheduled administrative workweek of the employee, including
regularly scheduled overtime hours; or

(B) the travel (i) involves the performance of work while
traveling, (ii) is incident to travel that involves the performance
of work while traveling, (iii) is carried out under arduous
conditions, or (iv) results from an event which could not be
scheduled or controlled administratively.

(Emphasis added.)

Congress has affirmatively prohibited payment for travel time
unless the conditions of the statutory exception are met. See
William C. Boslet, B-196195, February 2, 1981.

As explained by the agency, a veterinary medical officer's
travel is compensable only when there is an immediate official
necessity; where scheduling the travel is beyond the agency's
administrative control; and where the veterinary medical officer's
absence would essentially prevent the facility from operating.

As reported by the agency, while the claimant's headquarters
plant and official duty station were in [xxx] during the period
covered by his claim, the claimant was routinely assigned as a
Arelief@ officer to provide temporary inspection coverage at plants
throughout a wide geographic area. As concerned the travel for
which the claimant sought compensation, the agency described the
travel as having been performed in conjunction with covering
assignments at plants, covering assignments at multi-inspector red
meat/red meat and poultry plants, and covering single-inspector
slaughter assignments. The agency explained that a relief officer
travel is only compensable when there is an immediate need for
veterinary expertise. Where there is not an immediate need, the
travel is not compensable because it does not result from an event
which could not be scheduled or controlled administratively. 5
U.S.C. ' 5542(b)(2)(B)(iv).

The agency reported that in submitting his claims to the agency,
the claimant had initially claimed entitlement to compensation for
more than 130 trips, but that he had subsequently excluded the
claims for overtime travel performed in conjunction with covering
assignments and for most of his travel to multi-inspector red meat
slaughter establishments. The agency explained that all of the
claimant's poultry assignments were to multi-inspector poultry
plants, and that while it is desirable to fill inspector vacancies
at multi-inspector facilities, both poultry and red-meat, it is not
essential. These facilities are not required to shut down when
there is less than the full complement of inspectors, and while
agency regulations require, for example, that ante-mortem
inspections be performed, these inspections may be performed by
non-veterinarian, inspection personnel. We concur with the agency
that claims in connection with travel to multi-inspector facilities
are not of an immediate necessity and are, therefore, not
compensable. See 69 Comp. Gen. 385 (1990).

After denying the claims in connection with travel to what the
claimant acknowledged to be multi-inspector facilities, there
remained 9 trips for which the claimant sought compensation. In
reviewing these claims, the agency determined that the claimant had
already been compensated for one of these trips, and after
reviewing the other 8 trips, the agency determined that most of the
claimant's travel constituted a normal commuting time.@ The agency
explained with regard to these determinations, that the claimant
was normally expected to travel 147 miles or for 12 hours from his
residence to his duty station. See Steve F. Heller, B-175608, June
19, 1972.

While the agency was unable to retrieve all of the documentation
relating to the claimant's travel, there is substantial evidence to
support the finding that the claimant is entitled to overtime
compensation for 29 hours. Accordingly, the claim is granted for 29
hours and denied for 1,607 hours.

This settlement is final. No further administrative review is
available within OPM. Nothing in this settlement limits the
claimant's right to bring an action in an appropriate United States
Court."